Questions & explanations
1. Compare rehabilitation with deterrence theory.
Both rehabilitation and deterrence aim to prevent future crime, but they use different methods. Deterrence uses fear of punishment to stop people from committing crimes. Rehabilitation uses help and education to change the offender so he no longer wants to commit crimes. For example, deterrence would give a harsh prison sentence to scare a thief, while rehabilitation would teach the thief a job so he can earn money legally. Deterrence assumes people choose crime because they think it is worth the risk. Rehabilitation assumes people commit crimes because of problems like poverty, addiction, or lack of education. Both can work together in a justice system.
2. Compare how a lawyer and a historian find out the truth about a past event.
A lawyer looks for evidence that supports their client's side, following rules of court. They can only use evidence that is allowed, like witness testimony or documents. A historian tries to find the most accurate account using all available sources, even if they are not allowed in court. Historians can consider hearsay and opinions, while lawyers cannot. Also, lawyers aim to win a case, while historians aim for truth. For example, in a trial about a car accident, a lawyer might hide a witness who hurts their case. A historian would include that witness. So legal knowledge is shaped by procedural rules, while historical knowledge is more open.
3. How does natural law apply to homosexual acts?
Natural law says that homosexual acts are wrong because they cannot lead to procreation, which is the primary purpose of sex. According to this view, sex is designed for a man and a woman to unite and possibly have children. Homosexual acts use sexual organs in a way that does not fulfill their natural function. This does not mean that gay people are bad, but that the acts themselves are against nature. However, some modern natural law thinkers argue that the unitive aspect is also important, and if a same-sex couple can commit to lifelong love, it might be acceptable. But the traditional view is that only heterosexual marriage is natural.
4. What is a criticism of rehabilitation theory?
Some people say rehabilitation does not work for all offenders. For example, a person who has committed many violent crimes may not change even with therapy. Also, rehabilitation programs can be expensive and take a long time. Critics argue that offenders should be punished for their crimes, not given free help. They say that rehabilitation is too soft and does not give victims justice. Another problem is that it is hard to measure success: if an offender does not re-offend, it might be because he got older or found a job, not because of the program. Despite these issues, many countries use rehabilitation alongside other approaches.
5. Compare deterrence theory with retributive justice.
Deterrence theory focuses on preventing future crime by scaring people, while retributive justice focuses on giving deserved punishment for past crime. For example, deterrence would give a harsh sentence to a shoplifter to scare others, even if the crime is small. Retributive justice would give a light sentence because the crime is small, regardless of the effect on others. Deterrence looks forward to the future, retributive justice looks backward to the past. Deterrence might punish an innocent person to scare others, but retributive justice says that is wrong. They have different goals: one wants safety, the other wants fairness.
6. Compare incapacitation with deterrence theory.
Both incapacitation and deterrence aim to prevent crime, but they work differently. Incapacitation physically stops the offender from committing crime, for example by putting him in prison. Deterrence tries to scare the offender or the public into not committing crime. For instance, a long prison sentence for a robber incapacitates him (he is in jail) and also deters others (they see the sentence and are scared). However, deterrence can fail if people think they will not get caught. Incapacitation always works for the time the person is locked up, but it does not stop new crimes after release unless combined with other approaches.
7. How do natural law theorists respond to the is-ought criticism?
Natural law theorists say that the is-ought problem is based on a misunderstanding. They argue that human nature includes not just facts but also purposes (teleology). For example, the fact that eyes are for seeing implies that we ought to use them to see. Similarly, the fact that humans are rational and social implies we ought to act rationally and live in community. So, from the nature of a thing, we can derive its proper function. They also say that reason itself can grasp moral truths directly, without jumping from facts. So, they claim the is-ought gap can be bridged by understanding human nature as inherently goal-directed.
8. Can a morally bad rule still be law?
This is a big debate between natural law and legal positivism. Natural law thinkers say that a rule that is deeply unjust is not truly law. For example, a law that allows slavery violates basic morality, so it is not valid law. Legal positivists say that law is separate from morality. If a rule is properly enacted by the right authority, it is law even if it is evil. For instance, Nazi Germany's racial laws were technically valid under German law at the time. Most modern legal systems accept that law can be unjust, but they also include moral limits like constitutional rights. So the answer depends on your philosophical view.
9. Give an example of a criticism that natural law is too rigid or outdated.
Critics say natural law is rigid because it claims certain acts are always wrong, regardless of circumstances. For example, natural law traditionally condemns all forms of contraception, even condoms that prevent HIV. This seems outdated in a world with public health needs. Another example is its opposition to same-sex relationships, which many now see as natural for some people. Critics argue that natural law relies on a fixed view of human nature that ignores new scientific understanding. They say morality should adapt to changing knowledge and social conditions. Natural law defenders respond that basic goods are timeless.
10. Explain a contemporary debate about property rights from a natural law perspective.
One debate is about intellectual property, like patents and copyrights. Natural law thinkers argue that if you create an invention or write a book, your labor gives you a natural right to control its use. Others say that ideas should be free for everyone. Natural law would support limited protection to encourage creativity, but not forever. For example, patents expire after 20 years so that others can benefit. This balances the inventor's right with the common good. Another debate is about land ownership by corporations vs. local communities. Natural law might favor community access if the corporation uses land wastefully.
11. How does legal realism's policy focus compare with law and economics' efficiency analysis?
Legal realism also focuses on policy, but it looks at a broader range of factors, including fairness, power, and social context. Law and economics narrows policy to efficiency, often measured by wealth maximization. For example, in a tort case, a realist might consider the impact on poor plaintiffs, while an economist would ask which rule minimizes accident costs. Realists are skeptical that efficiency is the only or best goal. They argue that efficiency can justify unjust outcomes, like allowing pollution if it is cheaper than cleanup. Realism prioritizes empirical study of law's effects, not just theoretical efficiency.
12. Compare the idea that 'law is a command from a sovereign' with the idea that 'law is a system of rules'. Which one better explains modern law?
The command idea, from philosopher John Austin, says law is an order from a ruler backed by threats. This works for simple dictatorships but not for modern democracies where laws come from many sources. The system-of-rules idea, from H.L.A. Hart, says law is a union of primary rules (what people must do) and secondary rules (how to change and enforce primary rules). This better explains how laws can be created by parliaments, interpreted by judges, and changed over time. For example, a tax law is not just a command; it follows rules about how to pass a bill. Hart's view is more complete for today's complex legal systems.